Correction: I mistakenly typed VPC when it was actually a product of the Brady Campaign to Prevent Gun Violence distrubuted by JoinTogether. Thanks to Kevin of The Smallest Minority for pointing out my error.

Although to throw a small twist into the discussion I would have to bring up the XM8 Lightweight Assault Rifle being developed by Alliant Techsystems Inc. But since it uses a composite-type ammunition & is still in the pre-production stages of development that wouldn't be germane to there discussion.

"Instead of reasonably discussing the rule of law and the particulars involved in the case, Hannity railed and tried to shame Kuglin for getting away with not paying taxes all the rest of us Americans have to pay. It was well beyond deliberate, and his antagonistic comments lacked any form of relevance to the actual case.

There was no question Fox had been tapped to prejudice any potential juror who might serve in a civil prosecution the IRS may bring against Kuglin in the future. I am beyond certain that was their intent. As a result, I have completely lost all respect for Fox News, and they will never regain it again. Bill O’Reilly and his gang are government brown-nosed chumps.

It will be interesting to see what the IRS does now. They lost their criminal case against Kuglin in a huge way. In order to get a criminal conviction, they had to prove Kuglin intended to violate the law."

Now some years ago I read Irwin Schiff's book The Federal Mafia: How it Illegally Imposes & Unlawfully Collects Income Taxes. That was of course before a Nevada judge banned said book.
All in all Mr. Schiff seemed like a fairly intelligent person. I didn't agree with every theory he had, but I understand the logic he used most of the time to arrive at those theories. He did however make a few very good points & raised some very important questions. Unfortunately the judge that presided over the case did not entertain those questions or theories. In fact if you want to read an account of a judge who should look for honest work, pick up Mr. Schiff's book. Granted, it's told from Mr. Schiff's perspective, but if the accounts of the judge's conduct are true then you'll put it down a lot more distrustful of our legal system than you were when you picked it up.

I have cuaght the occassional news story on Mr. Schiff or other 'tax protestors' as the media likes to call them. The common thread to all these news stories has been a reporter with a slight scowl stating part of a 'tax protestors' arguments then putting on a smug grin as he/she says the IRS has addressed these issues & that they're frivilous. They never offer any more detail than that.

That seems to be what Fox has done in the Kuglin case, according to Mr. Worden. They didn't bother to get into the real issues & instead were content with assurring everyone they have to pay their income taxes. No serious treatment of the questions that the IRS has yet to answer. Instead the magic word 'frivilous' is spoken. I believe 'frivilous' by their definition would mean 'so far beyond question there's no need to explain further'.

That is disappointing. I expected better from a news channel that built itself up on a reputation of fairness.

Now how, you may ask, do I feel about the progressive income tax system we have? I look at it this way:

Imagine that I came to your neighborhood & told you I wanted to take 10% of your net income per week as collateral against a percentage of your net yearly income that would be tallied later at which point either I would give back a small percentage of what I took or you'd pay some lump some on top of what I took. I would tell you that this money would be used for community projects, like common protection & pension plans. I wouldn't mention, but you'd know that your money would also go towards causes that you may be in direct oppossition to. I'd tell you that to make sure you're not 'cheating' us we'd be able to look at your bank accounts, credit cards & even come in your house & look at your private records. I would then inform you that if you didn't pay I would come back with my boys & our machine guns (which you cannot easily possess) & we'd take you to our place & lock you up for a number of years & still take the money I said you owe us even if we had to sell all your property for pennies on the dollar to do it.

Now how would you feel about me? As long as a certain percent of the money went to things you liked, or you got a small percent of your weekly donation back at the end of the year, would that make me any less a common thief running a protection racket?

So is it any different that the common thieves are agents of government, or the protection racket was put in place by people we elected to represent us? Or more accurately by people our granparents & great granparents elected to represent them.

There's a much better way of doing things. Go visit Fairtax.org. They have a plan to eliminate the progressive income tax with a national sales tax. I'm not happy about the rate as i always felt the best thing we can do to Congress is cut their allowance, but it's a much better less intrusive system than the one we have now.

With a national sales tax replacing the progressive income tax, we could for th emost part eliminate the IRS. The government wouldn't have a justification for snooping in our financial records. We wouldn't have to spend x amount of time filing paperwork for the government. We wouldn't have x percent of our paychecks 'withheld' every week. We wouldn't have to deal with the dreaded 'audit'. Since employers wouldn't have to pay half our 'withholding' then either wages could increase slightly or an employer could invest in the business & possibly create more jobs. The average person wouldn't be in danger of prosecution if they make a simple math error on a federal form, nor would they face jail time if they misunderstood an overly complex & confusing section of federal law. & we'd finally be back in compliance with the Constitution's original limitations of federal taxing power.

But then again that would mean a sizable chunk of federal power would be lost, so opposition to this idea will be stiff to say the least.

here's another question to ponder: If we payed the income tax in one lump sum & wrote the check out a week before elections, do you think we'd have anyone in office who champinoned the progressive tax system? It's no coincidence that we're hit up every week & that any remaining balance is due almost 6 months before an election.

So go over to Fairtax.org , read what they have to say & if you agree then let your Senator & Representative know how you feel.

& please let me know if any of the lawyer bloggers post on this. I am mildly suprised that no one at the Volokh Conspiracy or Instapundit have blogged about the Kuglin decision yet.

Wednesday, August 13, 2003

The most interesting part is that the NRA filed a brief in support of Silveira, & no anti gun groups have filed against, although this may be incorrect as it takes a few days for the docket to be updated..

"There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result from marijuana usage. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others... the primary reason to outlaw marijuana is its effect on the degenerate races.

Marihuana is an addictive drug which produces in its users insanity, criminality, and death...You smoke a joint and you're likely to kill your brother...marijuana is the most violence-causing drug in the history of mankind."

Yep. Last thing we need is our women folk getting turned on by entertainers. A damned good reason all by itself for locking up those marihuana users & throwing away the key.

& congrads to Walter in Denver who has been providing reasoned blogging for over a year now.

Monday, August 11, 2003

Mr. Warin is in jail. He was arrested on charges that he violated the NFA of 1934. But there's a little more to it than that.

"Francis Warin had a nagging habit.
Nearly 30 years ago, he toted a submachine gun into Toledo’s federal courthouse and made a simple demand: Arrest me.
He got his wish.
Two months ago, the Ottawa County man mailed a homemade gun and silencer to an assistant U.S. attorney. To ensure there was no confusion, he sent the package by certified mail, complete with his return address.
Warin again got his wish: He was arrested once more.
Now the 72-year-old gun-rights advocate is fighting to get out of the Lucas County Jail - staging a hunger strike to try to force authorities’ hands."

Why would Mr. Warin do this you may ask?

"The French immigrant insists his actions make sense. They’re part of his on-again, off-again quest to challenge what he perceives as restrictions on the right to bear arms as covered by the Second Amendment to the U.S. Constitution.
His accent still thick after 42 years in America, the balding professional weapons designer believes the courts have stripped the Second Amendment of its meaning, and he’s willing to be the legal guinea pig to fix it.
'Civil cases don’t go anyplace,' Warrin told The Blade in an interview in jail. 'So what are you left with?' "

It gets better.

"Back in the 1970s, he had to practically beg to be indicted.
And the latest indictment took four years of taunting: threatening to bring a bomb to the FBI, boasting of illegal silencers he had made, and even taking out a newspaper ad to question why he hadn’t been indicted."

This guy believes so strongly that he not only was willing to go to jail in an effort to challenge the law, but he took out a friggin' newspaper ad about it? Before I listen to any other NRA apologists I want to see the check they wrote to help Mr. Warin's defense. Yes, you could argue his strategy may have been imperfect, but if the NRA had 1/10 the resolve that Mr. Warren did I could be blogging about something trivial & actually have enough spare time to reload & shoot as I would like.

"Prosecutors successfully argued before a local magistrate that Warin - the man who for years struggled to get arrested - is now too dangerous to let free.
'You just don’t know what a person like this is capable of doing,' said Tom Weldon, an assistant U.S. attorney Toledo. 'If he’s this desperate to gain attention, what’s next?' "

Yes. Keep him locked up. After all he is dangerous, challenging the governments' laws & all. Why if he were set free the 72 year old man might do something crazy like tell people why teh governments' laws aren't just. He might even wander into some crack-poy attorneys office who believes him & offers to help. (Note to any crack-pot attorneys - you could do worse than lending Mr. Warin a hand.)

To summize a bit, Mr. Warin was prosecuted in 1974 for his method of contesting the NFA of '34. His attempts at the district & appellate court level were unsuccesful & resulted in very anti-gun decisions which are cited frequently by the anti-gun groups.
However because of his situation the judge took pity on him & not only sentenced him to probation instead of jail time, but waived his restrictions on possessing weapons. Which, considering Mr. Warin designs weapons for a living & could not work if he were prohibited from them it was a very nice thing to do, especially considering the judge just ruled that a very bad law that's flawed in ways too numerous to mention was in fact constitutional.

However some years later Mr. Warin had his firearms seized because he offerred to bring the FBI a non-functional bomb. A judge decided that the previous judge's waiver on the prohibitions on possessing weapons only applied to his probationary period & Mr. Warin, being a convicted felon, had no Right to Arms.

So that appears to be the primary motivation of Mr. Warin's latest efforts - outrage that he is denied his Right to Arms because he challenged the governments restrictions on everyone's Right to Arms.

What does Mr. Warin wish to accomplish out of this? read on.

"He dreams of a full-fledged hearing on his case before the U.S. Supreme Court. The pro-gun interpretation has been adopted by a growing number of scholars and even Attorney General John Aschroft - making it more likely the high court could eventually step in."

That's all? He simply wants his day in court, albeit the highest court of the land, so he can attempt to correct an injustice?

"But Warin’s prosecution likely won’t be that test case.
Ms. Zemmelman gives it a "zero" chance. So does noted gun-rights advocate Stephen Halbrook, a Virginia attorney who has fought in many high-profile gun cases.
He scoffs at Warin’s tactics.
'I don’t know of any responsible Second Amendment advocates who would suggest that anybody get arrested,' he said."

Like I said, Mr. Warin may not be successful in accomplishing his goals, but he's trying. He's not sitting back waiting for the perfect composition of the Supreme Court, he's not collecting fees from a multitude of clients who are in violation of numerous firearms laws. He's not making money off laws that restrict the Rights of the people. He has no vested interest in making sure there are at least some gun laws that violate a persons' Rights. His job security wouldn't be threatened if the Second Amendment got proper treatment in the courts.

Halbrrok may be a fine lawyer, but as some older members of my family would say, he's about 10 switchins shy of being growed up. ('Switchin' refers to disciplining a child using a hickory or similar wood switch. It is a very effective way of correcting certain attitude & character problems that young children may suffer from. Unfortunately past a certain age 'switchins' are of no effect. therefore do not take it as my suggesting that someone should give Mr. Halbrook a 'switchin'. It's simply too late to do any good - at least for Mr. Halbrook.) For more on the NRA I refer you to this section of my archives.

"Before being wheeled back to his cell, Warin said he has no regrets. His explanation comes with a simple shrug.
'I had to do what I had to do,' he said."

Mr. Warin is not alone. while their methods may not have the approval of the NRA, there are others who for good or bad have made attempts to challenge firearms laws they felt were violative of their Rights. Rick Stanley has done so, albeit over a Denver city law rather than a federal law. Don Bird is trying to get his challenge of California firearms laws to the Supreme Court. & a gentleman named Haney challenged the NFA of 34 through an act of civil disobediance similar to Mr. Warin's. Haney was the other second amendment case, along with Emerson, that President Bush asked the Supreme Court not to hear. & as you may remember, they didn't grant them a hearing. (thanks to The Smallest Minority for the link to the Haney case.)

Mr. Warin & the others mentioned may or may not have the most sound legal strategy. I have heard very little of the actual arguments they plan to or have made in court concerning the constituionality of the various firearms laws they challenge. But instead of condemning them why don't we help them? Try to correct them where their arguments may be a little weak? Pony up some cash so they can afford a decent lawyer to argue their case?

No matter though, they should all have our respect for their attempts at correcting unjust laws. After all, they are in jail & risking a loss of their remaining Rights as much for you & I as for themselves.

FACT: Responds attorney Jeffries: 'It is not true that F. Paul Valone II sent an email to various people falsely claiming that Ms. Palmer had committed adultery. Instead, he reported a conclusion made by another party (which had been reported to him by this third party after observation of Ms. Palmer's rapport with an Assistant North Carolina Attorney General). That report occurred in the context of an explanation of the NRA's and Ms. Palmer's activities undermining GRNC's legislative initiatives at the North Carolina General Assembly. This conclusion is confirmed by the plain language of the allegedly defamatory statement recited in the Complaint filed by NRA Assistant General Counsel Daniel Zavadil. Finally, Valone did not vouch for the accuracy of the information or assert its truth, but simply reported what he had been told'."

One thing I do find suspicious though: Since a lawsuit has been filed there is a public record of the plantiff, the defendant, their representation & the allegations. Further, in any trial the e-mails in question would become evidence. It would therefore seem to me that anyone who attempted to make false statements about this matter would be found out fairly quickly & efficiently, hence there is not a very good chance of successfully lying about it.

Sunday, August 10, 2003

But what kind of blogger would I be if I didn't offer a solution that would address the goals of this miserable piece of legislation while doing it in a manner that wouldn't cause as much harm?

Instead of this law victims & potential victims of domestic violence would be served better by passing a law that actually protects them.

Here are some ideas for provisions of this ideal domestic violence law:

Grant an emergency restraining order upon a compelling request.

Inquire as to whether or not the plaintiff has access to a firearm.

If the plaintiff does not have access to a firearm, or a suitable firearm, then the sheriff's office &/or the court will provide one for him/her until he/she can purchase their own.

Inform the plaintiff that if the object of the restraining order is seen on the plaintiff’s property or within X feet of the plaintiff when the plaintiff is not in an area that the defendant is known to frequent, then the plaintiff may use deadly force against the defendant on the presumption that the defendant's violation of the restraining order is indicative of his/her intentions to cause the plaintiff harm.

Inform the plaintiff that any third party who by force, including deadly force, incapacitates the defendant when the defendant is on or within X feet of the plaintiff’s residence, workplace or other real property will receive a reward of $2,000 tax free.

Inform the plaintiff that he/she is to be armed at all times & give the plaintiff a copy of the recent law (so many NC laws to re-write, so little time) that acknowledges the Right of all citizens to be armed, the manner of which notwithstanding. (In other words in my ideal NC they'd do away with shall-issue concealed carry laws in place of a law that simply states it is a Right to carry weapons for defense of self & state, even concealed weapons).

Inform the plaintiff that when they leave the courtroom they will be escorted by a deputy to either the plaintiff’s home or other place where the plaintiff has a suitable firearm or to the place where the plaintiff will be loaned a firearm by the court &/or sheriff's department. Upon acquiring said firearm the plaintiff will then proceed with the deputy to the sheriff's firing range to be instructed in the proper use of said firearm, with the ammunition provided by the sheriff &/or court unless the plaintiff wishes to provide their own.

Inform the plaintiff that any children, relatives or neighbors may accompany him/her (providing the appropriate parental permission is obtained in the case of a minor) to receive firearm instruction from the deputy.

While the deputy is taking care of the instructional needs of the plaintiff another deputy will be immediately dispatched to the defendants home with a copy of the restraining order & all provisions thereof shall be explained, including the plaintiff’s firearms training & the reward offered should the defendant violate the restraining order. The deputy will then take a picture of the defendant.

The deputy will then proceed to the plaintiff’s neighborhood drop off copies of said picture along with reward information in the mailbox of all houses adjacent to the plaintiff’s.

Arrange a hearing within ten days so the defendant may protest the continuance of the restraining order. If it is found that there were no grounds for the restraining order, then the plaintiff shall reimburse the court & the sheriff's department for their expense, as well as providing the defendant with the option of pursuing reasonable damages, not to exceed $1,000.

If the restraining order is found to have just grounds for continuance then the defendant will be detained for two hours while the plaintiff exits the court. During that time it will be re-iterated to the defendant that any contact between him/her & the plaintiff could very well result in the defendant being charged with a felony provided the defendant lives. But that the defendant in no way loses any Rights because of this action. The defendant may still possess arms, travel freely, etc... with the exception of traveling to within X feet of the plaintiff’s property or place of employment.

The court will then inform the local television stations of the restraining order so the defendants' picture may be broadcast on the 5, 6 &/or 11 o'clock news. Fliers with the defendant’s picture & reward information will be posted within 4 blocks of the plaintiff’s residence & at or near the entrance to the plaintiff’s place of employment.

Now granted, it's not a perfect idea, but it's a damn sight better than North Carolina's SB 919.

AN ACT TO ENHANCE THE SAFETY OF VICTIMS IN SERIOUS DOMESTIC
VIOLENCE CASES.

Wait - they are gonna provide firearms & instructions on their proper use to domestic violence victims??? Oh yeah, a bill's title doesn't have to have anything to do with its contents.

The General Assembly of North Carolina enacts:

SECTION 1. Chapter 50B of the General Statutes is
amended by adding a new section to read:
"§ 50B-3.1. Surrender and disposal of firearms;
violations; exemptions.
(a) Required Surrender of Firearms. - Upon
issuance of an emergency or ex parte order pursuant to this
Chapter, the court shall order the defendant to surrender to the
sheriff all firearms, machine guns, ammunition, permits to
purchase firearms, and permits to carry concealed firearms that
are in the care, custody, possession, ownership, or control of
the defendant if the court finds any of the following
factors:
(1) The use or threatened use of a deadly
weapon by the defendant or a pattern of prior
conduct involving the use or threatened use of
violence with a firearm against persons.
(2) Threats to seriously injure or kill
the aggrieved party or minor child by the
defendant.
(3) Threats to commit suicide by the
defendant.
(4) Serious injuries inflicted upon the
aggrieved party or minor child by the
defendant.

If it was only item number 4 & part of number 1 (where it speaks of actual use) then I might see this as useful, but to include threats implies that those threats can be established solely on the word of the person seeking the order. But as written is has the potential to be a tool in the hands of vindictive people who are in no way threatened. I can certainly believe that more than one person in NC would use this solely to make their ex miss out on hunting season. Or ruin a gunsmiths or gun dealers business.

But more on the machine gun language towards the end.

(b) "Ex Parte or Emergency Hearing. - The court
shall inquire of the plaintiff, at the ex parte or emergency
hearing, the presence of, ownership of, or otherwise access to
firearms by the defendant, as well as ammunition, permits to
purchase firearms, and permits to carry concealed firearms, and
include, whenever possible, identifying information regarding
the description, number, and location of firearms, ammunition,
and permits in the order."

This hearing would exclude any & all input from the person who is to be the object of a restraining order. The idea is that some situations are so time critical that waiting for the defendant (i.e. the person who would be the object of the restraining order) to be notified & appear would endanger the plaintiff (the one seeking the restraining order). Of course this assumes that restraining orders actually stop people from committing crimes. But I can see the necessity for this in certain, very limited situations.

Asking the plaintiff for any info on the presence of weapons & ammunition may not seem like a bad thing, but wait till we get to the next part.

"(c) Ten-Day Hearing. - The court, at the 10-day
hearing, shall inquire of the defendant the presence of,
ownership of, or otherwise access to firearms by the defendant,
as well as ammunition, permits to purchase firearms, and permits
to carry concealed firearms, and include, whenever possible,
identifying information regarding the description, number, and
location of firearms, ammunition, and permits in the order."

So correct me if I'm wrong, NC law provides for a hearing to be held ten days after an emergency protection order is issued. At this hearing the person restrained by the order has a chance to speak his mind.

However, asking him about what firearms he has is problematic. Practically his answers will be compared with those of the plaintiff & should any discrepancy arrive as to how many weapons he has or had then it's very likely that the judge will issue a search warrant to find out if he has weapons that he's not telling about.

There's another problem with this but I'll save that for the end.

"(d) Surrender. - Upon service of the order, the
defendant shall immediately surrender to the sheriff possession
of all firearms, machine guns, ammunition, permits to purchase
firearms, and permits to carry concealed firearms that are in
the care, custody, possession, ownership, or control of the
defendant. In the event that weapons cannot be surrendered at
the time the order is served, the defendant shall surrender the
firearms, ammunitions, and permits to the sheriff within 24
hours of service at a time and place specified by the sheriff.
The sheriff shall store the firearms or contract with a licensed
firearms dealer to provide storage."

So the defendant will be required by law to surrender all firearms & ammunition. The sheriff will then either store them his/herself or contract with a gun dealer to store them. I know some NC gun dealers who are already basing their future purchases on fees for storing weapons under the provisions of this law. (yes I know some shady NC gun dealers - not the 'selling guns to felons' kind of shady, but the 'mark it up 50% then offer you 10% off' kind of shady.)

"(1) If the court orders the defendant to
surrender firearms, ammunition, and permits, the
court shall inform the plaintiff and the defendant
of the terms of the protective order and include
these terms on the face of the order, including
that the defendant is prohibited from owning,
possessing, purchasing, or receiving or attempting
to own, possess, purchase, or receive a firearm for
so long as the protective order or any successive
protective order is in effect. The terms of the
order shall include instructions as to how the
defendant may request retrieval of any firearms,
ammunition, and permits surrendered to the sheriff
when the protective order is no longer in effect.
The terms shall also include notice of the penalty
for violation of G.S. 14-269.8."

Please note that it says the defendant has to be informed of how he/she "may request" the return of his property once the protective order is no longer in effect. That means that once any & all restraining orders expire you don't get a call or letter from the sheriff telling you to come pick up your shootin' irons. You must take action yourself when the restraining order expires.
Now practically speaking this shouldn't be a big deal, depending upon the action required. I know the second a protective order expired (as in 12:01 a.m.) I'd be at the sheriff’s office wanting my property returned. But still I'm not happy that the sole burden of retrieval seems to be on the defendant.

"(2) The sheriff may charge the defendant a
reasonable fee for the storage of any firearms and
ammunition taken pursuant to a protective order.
The fees are payable to the sheriff. The sheriff
shall transmit the proceeds of these fees to the
county finance officer. The fees shall be used by
the sheriff to pay the costs of administering this
section and for other law enforcement purposes. The
county shall expend the restricted funds for these
purposes only. The sheriff shall not release
firearms, ammunition, or permits without a court
order granting the release. The defendant must
remit all fees owed prior to the authorized return
of any firearms, ammunition, or permits. The
sheriff shall not incur any civil or criminal
liability for alleged damage or deterioration due
to storage or transportation of any firearms or
ammunition held pursuant to this section."

So after they take your property & all restraining orders expire they want you to pay to get your property back. In other words if you're squeaky clean & everything turned out to be a judge erring on the side of caution then before you can recover your firearms you have to pay the sheriff.

& I've been arguing this a lot lately with some friends, but just what constitutes 'reasonable'? For some sheriffs I'm sure they'd think $100 per month per gun was reasonable. My idea of reasonable in this situation can also be defined as the sheriff paying me $100 a month for taking my firearms (out of his own pocket so as not to burden the taxpayers any further).

& to top it all off, the sheriff is immune from criminal or civil action if any of the firearms that were taken from you were damaged - after you paid for their supposed storage! Under that language a sheriff could take a drill & a blowtorch to every single one of your firearms, let them soak in saltwater & then after collecting his fee give the firearms to you in a large bag.

"(e) Retrieval. - If the court does not enter a
protective order when the ex parte or emergency order expires,
the defendant may retrieve any weapons surrendered to the
sheriff unless the court finds that the defendant is precluded
from owning or possessing a firearm pursuant to State or federal
law."

Sounds o.k. doesn't it? You get to start whatever steps are necessary to get your firearms back if there's no further restraining order against you after the emergency order expires.
Course where it gets sticky is the 'state or federal' law language. If I remember correctly in NC a felon may keep a firearm at his/her home (& solely at the home) for defense of life at the home. It’d be interesting to see if a NC judge would opt to go with the stricter federal guidelines or not.

"(f) Motion for Return. - The defendant may request
the return of any firearms, ammunition, or permits surrendered
by filing a motion with the court at the expiration of the
current order and not later than 90 days after the expiration of
the current order. Upon receipt of the motion, the court shall
schedule a hearing and provide written notice to the plaintiff
who shall have the right to appear and be heard and to the
sheriff who has control of the firearms, ammunition, or permits.
The court shall determine whether the defendant is subject to
any State or federal law or court order that precludes the
defendant from owning or possessing a firearm. The inquiry shall
include:
(1) Whether the protective order has been
renewed;
(2) Whether the defendant is subject to
any other protective orders; or
(3) Whether the defendant is disqualified
from owning or possessing a firearm pursuant to 18
U.S.C. § 922 or any State law.
The court shall deny the return of firearms, ammunition, or
permits if the court finds that the defendant is precluded from
owning or possessing a firearm pursuant to State or federal
law."

So if the protection order expires then not only must you go through another hearing, but the plaintiff who started all this & the sheriff will be there. & there's a 90 day time limit for this. That's gotta suck for active duty military who are called out of country for more than 90 days at a time.
But there is still the question of whether state or federal law would take precedent in the case of a convicted felon, although the implication seems to be that they're to look closely at federal law as it's specifically mentioned.

"g) Motion for Return by Third-Party Owner. - A
third-party owner of firearms, ammunition, or permits who is
otherwise eligible to possess such items may file a motion
requesting the return to said third party of any such items in
the possession of the sheriff seized as a result of the entry of
a domestic violence protective order. The motion must be filed
not later than 30 days after the seizure of the items by the
sheriff. Upon receipt of the third party's motion, the court
shall schedule a hearing and provide written notice to all
parties and the sheriff. The court shall order return of the
items to the third party unless the court determines that the
third party is disqualified from owning or possessing said items
pursuant to State or federal law. If the court denies the return
of said items to the third party, the items shall be disposed of
by the sheriff as provided in subsection (h) of this section."

So if you have a friend or relative's guns or ammo then within 30 days that third party can ask the court to have his guns returned. But the plaintiff will be notified & have a chance to speak at the hearing, along with the sheriff. However it does say the court shall surrender the items to the third party unless said third party is somehow disqualified from owning or receiving firearms.
Of course this too would suck for someone out of town for a month or longer as there is a 30 day time limit.
If the third party request is denied (or by implication if said third party doesn't make the request for their return in time) then it's up to the sheriff as to how they are disposed of.

"(h) Disposal of Firearms. - If the defendant does
not file a motion requesting the return of any firearms,
ammunition, or permits surrendered within the time period
prescribed by this section, if the court determines that the
defendant is precluded from regaining possession of any
firearms, ammunition, or permits surrendered, or if the
defendant or third-party owner fails to remit all fees owed for
the storage of the firearms or ammunition within 30 days of the
entry of the order granting the return of the firearms,
ammunition, or permits, the sheriff who has control of the
firearms, ammunition, or permits shall give notice to the
defendant, and the sheriff shall apply to the court for an order
of disposition of the firearms, ammunition, or permits. The
judge, after a hearing, may order the disposition of the
firearms, ammunition, or permits in one or more of the ways
authorized by subdivision (4), (4a), (5), or (6) of G.S. 14-
269.1. If a sale by the sheriff does occur, any proceeds from
the sale after deducting any costs associated with the sale, and
in accordance with all applicable State and federal law, shall
be provided to the defendant, if requested by the defendant by
motion made before the hearing or at the hearing and if ordered
by the judge."

So if you're disqualified from owning or possessing firearms the sheriff gets to dispose of your firearms in a certain manner. You do get the cash from any sale, minus a cut off the top to cover the sheriff's expenses.
But the above also applies if you don't file your request to have your firearms back within the time allotted, or if you can't pay for the sheriff's 'reasonable storage fees' within 30 days of asking for your firearms back. Nice racket ain't it?

"(i) It is unlawful for any person subject to a
protective order prohibiting the possession or purchase of
firearms to:
(1) Fail to surrender all firearms,
ammunition, permits to purchase firearms, and
permits to carry concealed firearms to the sheriff
as ordered by the court;
(2) Fail to disclose all information
pertaining to the possession of firearms,
ammunition, and permits to purchase and permits to
carry concealed firearms as requested by the court;
or
(3) Provide false information to the court
pertaining to any of these items."

More on this one at the end.

"(j) Violations. - In accordance with G.S. 14-
269.8, it is unlawful for any person to own, possess, purchase,
or receive or attempt to own, possess, purchase, or receive a
firearm, as defined in G.S. 14-409.39(2), machine gun,
ammunition, or permits to purchase or carry concealed firearms
if ordered by the court for so long as that protective order or
any successive protective order entered against that person
pursuant to this Chapter is in effect. Any defendant violating
the provisions of this section shall be guilty of a Class H
felony."

So if you have a box of .22 Long Rifle cartridges or a shotgun shell hiding behind a box in the closet while a restraining order is in effect & they find out, then you too could be a felon. & I'll spare y'all the usual rant about the absurdity of making mere possession of a firearm a crime at all.

"(k) Official Use Exemption. - This section shall
not prohibit law enforcement officers and members of any branch
of the United States armed forces, not otherwise prohibited
under federal law, from possessing or using firearms for
official use only."

But of course, cops & soldiers are exempt while on duty.
If having a restraining order is such an indication of violent, potentially criminal behavior, then isn't it just a little disturbing that they feel the need to specifically exempt cops & soldiers from this law? Either the restraining orders are not that big of a deal or the standards for our police & military have gone downhill. I'm inclined to believe the former, but I am still disturbed that the legislators thought it necessary to exempt police & military. Is it their opinion that a lot of cops & soldiers get restraining orders filed against them? Or do they simply feel any agent of the government should not be burdened with the laws they enact against mere citizens?

& what about the citizen who wants to perform his duty? Ya know, the duty of protecting yourself, your family & community. On general principles I have problems with any law that excepts someone from criminal activity simply because they work for the government.

"(l) Nothing in this section is intended to limit
the discretion of the court in granting additional relief as
provided in other sections of this Chapter."

The question I have is who is the object of relief they refer to here? Does this mean the plaintiff may seek additional relief? Or does it mean the defendant may seek additional relief? Or does it mean both? Being in a time crunch I will have to wonder for a while. At least until I have the time & motivation to go over the rest of that Chapter.

SECTION 2. G.S. 14-269.8 reads as rewritten:
"§ 14-269.8. Purchase [or possession] of firearms by
person subject to domestic violence order prohibited.
(a)XItX [In accordance with G.S. 50B-
3.1,] it is unlawful for any person to Xpurchase or
attempt to purchase any gun, rifle, pistol, or other firearm
while there remains in force and effect a domestic violence
order issued pursuant to Chapter 50B of the General Statutes,
prohibiting the person from purchasing a firearm.X
[own, possess, purchase, or receive or attempt to own, possess,
purchase, or receive a firearm, as defined in G.S. 14-409.39(2),
machine gun, ammunition, or permits to purchase or carry
concealed firearms if ordered by the court for so long as that
protective order or any successive protective order entered
against that person pursuant to Chapter 50B of the General
Statutes is in effect.]
(b) Any person violating the provisions of this section shall
be guilty of a Class H felony."

The words or sentences surrounded by brackets [ ] are what's been added to the law. The words or sentences surrounded by capital X’s are what has been crossed out of the law. I really have to break down & learn how to underline & cross stuff out one day.

Before this law it was only unlawful to attempt to purchase or attempt to purchase a firearm while there was an active restraining order against him/her. Thus one may have kept any & all firearms one had. You just couldn't buy anything new. But now it includes possession & not just of firearms, but ammunition as well. & not only the act of possession, owning, receiving, or purchasing but any attempt to do so.

" SECTION 3. This act becomes effective December
1, 2003, and applies to offenses committed on or after that
date.
In the General Assembly read three times and ratified
this the 10th day of July, 2003."

So it passed both houses & once the governor signs it it'll take effect on December 1rst, 2003.

Now on to the stuff I said I'd get to at the end.

One additional question is raised by this law, but it only would apply to a subset of firearms owners. If I remember correctly the NFA of '34 requires that any person who possesses a firearm affected by the act (short barreled shotgun or rifle, a machine gun or a silencer) must receive BATF approval prior to moving the weapon to another location (trips to the range & gunsmith excepted). The request must be made in writing & the approval granted before any move or transfer of the firearm in question is made. Violating this section is a felony. So it is conceivable that SB 919 may require a person to transfer a firearm in violation of the NFA of '34. Which would mean if you don’t comply with SB 919 then you’re likely to be charged with a felony under its provisions, but if you do comply without getting prior BATF approval then you’re likely to be charged with a felony under the NFA of ‘34? It all hinges on exactly how quick the BATF will grant approval. Interesting dilemma isn't it? Face state charges or face federal charges.

But this question pales in comparison to what comes next.

SB 919 violates the U.S. & North Carolina Constitutions. There's a conflict. & not just in the usual way about restricting &/or prohibiting a person from exercising their Right to arms. It's unconstitutional in a way that the courts will actually recognize. In fact they have to.

Ya see, section 1 c says that the court will inquire about any & all firearms & ammunition the defendant has. That's not great IMHO but it's not unconstitutional.
However contrast that with Section 1 i 1 & 2. I'll reprint the relevant part below for your convenience:

"(i) It is unlawful for any person subject to a
protective order prohibiting the possession or purchase of
firearms to:

(1) Fail to surrender all firearms,
ammunition, permits to purchase firearms, and
permits to carry concealed firearms to the sheriff
as ordered by the court;

2) Fail to disclose all information
pertaining to the possession of firearms,
ammunition, and permits to purchase and permits to
carry concealed firearms as requested by the court;"

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Still don't see it? Here's the most direct hint I can give you:

"...nor shall be compelled in any criminal case to be a witness against himself..."

That's right. SB 919 makes it unlawful to with hold information about yourself. That violates the 5th Article of the Bill of Rights. You cannot be made to be a witness against yourself, but SB 919 clearly states that should you with hold any information about firearms or ammunition in your possession, then you are subject to a felony charge.

In Haynes the Supreme Court held that a registration requirement violated the 5th Amendment when that registration could be used to pursue further charges. There is no difference in requiring someone to register their firearms, especially those they may not be lawfully entitled to have & requiring someone to inform a judge about their firearms, which under the conditions of SB 919 may be unlawful for them to have.

SB 919 provides that a person who does not comply with this law is guilty of a class H felony. That is compelling someone to comply with this law, including the section that requires a person to give information that may be used against him/her in a criminal proceeding.

SB 919 conflicts with the 5th Amendment to the U.S. Constitution & the Supreme Court's decision in Haynes. Barring any new angles all inferior courts are required to follow the decisions made by the Supreme Court, for good or bad.

Now if any of you who cannot stand the sound of sheep find fault with this analysis please let me know. But if I'm not mistaken this law is in conflict with the Constitution's provisions against compelled self-testimony.

"Sec. 23. Rights of accused. In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony, and to have counsel for defense, and not be compelled to give self-incriminating evidence, or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty. "

So this law is in conflict of 2 constitutions. But wait, there's more.

Again from the N.C. Constitution I offer you this:

"Sec. 25. Right of jury trial in civil cases. In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable."

Now this is a bit shady because it clearly mentions civil cases as opposed to criminal, but it does seem to state that in any matter concerning property that a jury, not a judge shall make the final decision. So the only question is whether or not the forfeiture of a person's firearms with no criminal prosecution would constitute a civil proceeding.

& I fear my reputation would suffer if I didn't include this part of the North Carolina Constitution:

"Sec. 30. Militia and the right to bear arms. A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty. they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice."

Just as with the U.S. Constitution's prohibition on government infringing upon the Right to own & possess weapons, the N.C. Constitution protects the citizen from having their Right to Arms infringed. (Although I find the language concerning concealed weapons to be an infringement of the Right to Arms& as such contradictory with the preceding section of that amendment).

In summation not only do I find SB 919 to be burdensome on those who would not commit crimes of violence, but pretty damned useless against ones that would. It's not based on good sound policy & is on its face in conflict with the N.C. & U.S. Constitution's provisions concerning compelled testimony.

Consequently I am not satisfied with the NRA's explanation of their actions concerning this bill. They either didn't bother to read it fully before they decided not to oppose it (not making a decision either way is still failing to oppose it), their interests wouldn't have been served by it's failing to pass or it's passage served some purpose of theirs.

No matter what the NRA's motivations were, with the passage of SB919 North Carolina is in a worse state than when I left it. For this I am truly sorry.

"You've got a bigger beef with GRNC than you have with NRA. You just can't
understand what they are doing. I, too, have been bothered by the recent claims
of GRNC. Consequently, the NRA has put together a few things that I can share
which might shed a little more light on what the situation is, and how it has
evolved to this point. Hopefully this issue will fall by the wayside and we can
all expend our energies jointly defending the Second Amendment and regaining
lost ground from the past.

Best regards,

Jim Nicholson, Dallas, TX
NRA Director

“NRA has not filed suit against Grassroots North Carolina, however, an NRA
employee, Jennifer Palmer, has filed suit against Paul Valone, President of
Grassroots North Carolina and Grassroots North Carolina as an organization for
defamation of character.

Mr. Valone sent an email to numerous people falsely claiming that Mrs. Palmer
was committing adultery. This false statement clearly defamed Mrs. Palmer’s
moral character and integrity. Despite several opportunities to do so, Mr.
Valone refused to apologize for making the false statement and refused to
retract the false statement. As a result, Mrs. Palmer filed suit against Mr.
Valone.

Mrs. Palmer’s lawsuit has nothing to do with legislative or political
activities. It is solely based on Mr. Valone’s defamation of Mrs. Palmer’s
moral character.

As the issue is currently in litigation, no further comment would be appropriate
at this time.”

Summary of SB 919 -- North Carolina

SB 919, introduced by Senator Tony Rand (D-19), sought to require anyone subject
to an ex parte or emergency order of protection in a case involving domestic
violence to surrender any firearms he possessed. As originally introduced, the
legislation sought to give the courts broad discretion when determining whether
firearms would need to be surrendered. NRA worked with the bill sponsor, Sen.
Tony Rand (D-19), to have the discretionary language removed—ensuring that only
specified courses of violent conduct by the defendant could result in the
seizing of his firearms—and to clean up other areas. These other areas included
ensuring specific instructions be given the defendant on how he could retrieve
seized firearms when he was no longer subject to the order, as well as included
provisions to ensure a third party could retrieve any seized firearms that
should not be subject to seizure. NRA took no official position on this
legislation, which was sent to Gov. Easley on 7/11/03. At this time, it is
unclear if the bill was signed into law.

As for the complaints by Grass Roots North Carolina regarding NRA’s efforts with
respect to SB 919, they are without merit. GRNC was given an opportunity to
testify about any problems it had with the legislation when the bill was heard
in House Judiciary Committee IV. After Ms. Henri McClees, speaking for NRA,
testified that the primary problem with the legislation was the discretion
language, GRNC representative Jeff Rau was told he could testify. Instead of
explaining the problems GRNC now claims it has with “registration” and storage
fees for seized firearms, he merely stated that he did not wish to take up the
committee’s time because Henri McClees had already explained the primary concern
GRNC had with the bill. After the committee hearing, several GRNC members
approached Henri to thank her for testifying so well, and they seemed
exceptionally happy to see NRA and GRNC shared the same concerns with SB 919.
At no point was there ever any mention of “registration” or storage fees.

Regarding the issue of “registration,” this is simply a red herring. It would
seem that anyone who has had his property seized would want that documented, so
as to facilitate its proper return in a timely and accurate way. There is
nothing that specifically mandates the recording of firearms that are not
subject to seizure.

Turning to the issue of storage fees, it is unlikely sheriffs will charge fees
for the temporary storage of a small number of firearms, even though the
legislation does allow for a “reasonable fee.” In cases where someone subject
to a protection order has a large collection that sheriffs may not have the
facilities to properly store, they will likely need to seek the services of
someone in the private sector, and in those circumstances, fees will likely be
charged."

It'll be interesting to see how this all turns out.

However I will point out that I am not satisfied with the NRA's explanation of the circumstances surrounding the North Carolina SB 919. It sounds quite typical of them to downplay any & all negative effects of a bill they did not actively oppose. But it is not just GRNC that is not happy about the bill. I offer this link to the Gun Owners of America alert on SB 919.

Search This Blog

Contact info

If leaving a comment here is insufficient, or you'd secretly like to tell me how cool Garands are without any of your poodle shooter lovin' pals knowing you're a convert, publicola_mu at yahoo dot com is how I may be reached by email.